Global Capitalism and Law

Launched in 2015 as a Buffett Institute “Big Ideas” project, our Global Capitalism and Law research group investigates the political, social, legal, and normative underpinnings of successful and politically sustainable local, national, and global markets.

I have a number of projects that focus on global capitalism and law.

Ruling the Global Economy: Why is Money so Different from Trade?
A book project with article spin-offs (with Stephen C. Nelson)

Framed as an investigation of divergent legalization in the global regulation of money and trade, this project creates a global history of the current system of global economic governance. Unique elements of this project include: 1) We integrate global governance developments in the regulation of money and trade, two issues areas that are functionally linked yet they have been institutionally (and some would say dysfunctionally) divided between the IMF and the World Trade Organization. These two issue areas have also become siloed areas of study, which is to say that trade experts know little about the governance of money, and visa versa. 2) We investigate both decisions made and not made by examining proposals offered yet not acted upon.  We thus see non-decisions–choices to eschew a more legalized or internationally institutionalized form of global governance– as equal in importance to decisions that are made.  3) In uniting siloed trade and monetary global governance developments, we are studying global economic governance as a regime complex. Global structural challenges, such as decolonization, the Cold War, and major economic crises, affected both domains, and there are connector issues such as concerns about balance of payments which lead challenges in one domain (e.g. monetary instability, overvalued currencies etc) to reverberate in other policy domains (e.g. trade). 4) We think about how uncertainty, unknowables, and past concerns shape present and future decision-making. Our account therefore highlights contingencies in choices made, and how decisions and non-decisions in one period of time shapes actions and non-actions at later periods of time.

Global Governance and the Problem of the Second Best
Articles co-authored with Cristina Lafont (Philosophy)

The problem of the second best identifies pitfalls of using normative ideals as a reform guide.  Institutional reforms designed to move in the direction of a first-best ideal can lock in dynamics that generate outcomes that are worse than the unreformed second-best system. To avoid such an ‘approximation trap,’ we advocate second-best theorizing that includes ideal and deviant elements.  Second best strategizing also needs normative guides and floors, since normative theory aims for an improved world. One thus needs to defend certain ideals.  Yet for other aspects, compromises may be necessary or allowed.  For now, we illustrate the problem of the second best by considering the World Trade Organization where we defend ideal elements (multilateralism, transparency and contestation) and deviant elements (affordable non-compliance, and the right to replace the current system through a constructive vote of no-confidence). We suggest that second-best theorizing is a very different task than ideal theorizing, and it may run counter to the global constitutionalist project.  More generally, second best theorizing involves identifying ideals worth protection, deviations that may be necessary evils for the moment, and collective decisions to step back or abandon (if only for now) fundamental ‘acquis’—bodies of laws and agreements that may be seen as progress towards an ideal yet that have lost important political support.

The Politics of Backlash in Comparison
A special issue and book project (with Michael Zürn, Wissentschaftzentrum Berlin)

Backlash is a theme I have long investigated in the context of international courts. This project  moves beyond existing discussion of backlash politics to think about whether there is something distinct and general about backlash politics. With Michael Zürn, we put together a group of diverse political scientists to review a broader set of literatures and issues with the goal of exploring if there is something distinct about a politics of backlash.  Our two workshops helped us develop a definition of backlash politics that includes three necessary conditions: 1) a retrograde objective; 2) extraordinary goals, methods and tactics; and 3) reaching the threshold of entering public discourse. These necessary elements bring with them frequent companions, including: emotional appeals, rose-colored nostalgia, and negative sentiments such as anger and commitment; the extraordinary objectives often inspire taboo breaking; and when the threshold level of entering public discourse is reached, backlash politics also often leads to the reshaping of institutions through either formal means (e.g. rewriting policies and process to alter future trajectory of politics) or informally (e.g. repurposing or reinterpreting existing rules and processes).

A special issue of the British Journal of Politics and International Relations (2020) will theorize further about backlash politics, developing the composite elements and offering illustrations from around the world. This project will be expanded into a book project which will allow deeper empirical investigations, including studies that go further back in time. The project intentionally unites the subfields of American politics, comparative politics, international relations, race and identity politics, and normative theory.  We also mix senior and junior scholars, underrepresented scholars, and American and European based scholars.

International Economic Governance and Dispute Resolution: A contractual v. rule-of-law approach
A book chapter for the World Trade Forum, October 2019, Bern Switzerland

This paper discusses the three primary ideal-types through international economic governance operates.   The private contract mode of global economic governance lets businessmen create mutual agreements so long as these agreements adhere to basic contractual confines.  The interstate contract mode of global economic governance brings the power of states into the private contract model, and it thus adds some centralization and state-backed coercion. The principled multilateralism mode of global economic governance takes its name from the organizational form of multilateralism, where three or more states agree to coordinate behavior on the basis of general principles that will order relations among the states in the future. The agreements and rules generated by principled multilateralism laws are not contracts so much as they are common rules, binding on all signatories states, to be interpreted by impartial multilateral arbiters that are tasked with ensuring that the law is respected. I first explain the benefits and pitfalls of each ideal type raising questions about whether we whould  prefer a system in which businesses govern trade (a libertarian perspective that has many adherents, and that can result in a world in which economic interests trump all other values) versus a system in which legislatures try to balance the needs of business against other public-oriented goals? The paper then examines larger political stakes, embedding the three ideal types into the historical context of global capitalism to understand how the three modes of global economic governance reflect  post-colonial efforts to replace physical, territorial and military domination with law and contract. All three models are here to stay, warts and all. We therefore need to think about how to use private contracting, inter-state contracting and multilateralism in combination, as a means to facilitate international commerce without compromising the rights of people to live and prosper, and to govern their economy, polity and society as they collectively choose.

From Empire to Multilateralism:  Has Anything Changed?

A lead article for ICon (to appear in 2021), this essay will work with global history accounts on the law of empires, with the goal of figuring out how empires used global economic law.  It will then examine the fundamental shift that happened from 1930-1948. Considering how the GATT developed over the next 40 years, it will ask what, if anything, changed in how global economic rules are constructed and enforced.